Human Rights

Whilst attending Law Asia’s Annual Conference in Colombo, Sri Lanka last summer, BWL’s Counsel, Rule of Law and Human Rights expert, Antje Kunst, met with the Rainbow Foundation Baddegama, an NGO which works with children with disabilities, their parents, as well as children in care, with the aim of creating opportunities for peer support. Through the Head of that NGO, Antje had the pleasure of getting to know a respected Buddhist monk who is engaged with such issues. The trio came up with the idea of bringing Janis McDavid, a young German student and motivational speaker who was born without arms and legs, to Sri Lanka.

A few months later the team was joined by Lalith Ganhewa, a Sri Lankan radio journalist and producer from Berlin and the President of Lanka Help e.V. Deutschland, a humanitarian organisation helping inter alia persons with disabilities in Sri Lanka. After months of hard work involving civil society (e.g., NGOs, academia, media, business etc.), the government of the Southern Province and members of the diplomatic and donor community in Sri Lanka, a tour was organised. In December 2016 and January 2017, Janis delivered motivational speeches to Government officials, NGO representatives, youth leaders, university students, business leaders and other citizens, some senior officials within Embassies and the UN, as well as conducting interviews with the media. The tour, in respect of which Antje played a crucial coordination, communication and planning role, was very successful.

In March 2017, a second tour took place and Janis provided a motivational speech before the Sri Lankan business community at a Rotary district conference. This time Antje, a former Senior Legal Adviser at the UN, was, together with UNDP Sri Lanka, involved in organising a motivational session in front of the staff of all UN Agencies, including their adolescent children.

The two tours motivated and helped raise awareness in mainstream Sri Lankan society as well as the UN and the diplomatic community in Sri Lanka, of matters important for the implementation of the UNCRPD and the UNCRC, including the importance of inclusive education and parenting.

To ensure the realization of the rights of children during adolescence, in December of last year the UN’s Committee on the Rights of the Child published a new General Comment[2] providing guidance to States on the necessary measures. The Committee stated “the potential of adolescents is widely compromisedbecause States parties do not recognize or invest in the measures needed for them to enjoytheir rights.” UNICEF South Asia’s goal to promote investment by state parties in the 340 Million adolescents in South Asia prompted the Deputy Head of the Regional Office South Asia to invite Janis to a conference held in May 2017 in Nepal. Janis opened the conference, which was attended by senior officials of all UNICEF South Asia’s country offices, with a keynote motivational speech which Antje helped to prepare, covering the topics of investment in, and fulfilment of, children’s rights, including in adolescence, leaving no child behind. His speech, which was widely disseminated in the social media and which was also addressed to the young people of South Asia, was focused on motivating that group to advocate for the realization of their rights.

Janis’ successful appearance in Nepal prompted the UNICEF Bangladesh country office to follow suit. In July 2017 Janis delivered motivational speeches to UNICEF’s HQ and field staff in and near Dhaka, the aim of which was to drive the achievement of results by its staff, including by ensuring the the fulfilment of rights of children. He also spoke to around 100 adolescent club members in the Mirpur slum with a view to enhancing their motivation to work as social change agents, which was supported by UNICEF.

The advancement of human rights, in particular of the most vulnerable members of society, i.e. children and young adults, including those with disabilities, requires a committed government machinery, supported by a motivated UN staff (e.g., of UNICEF), as well as motivated rights’ holders, e.g., the millions of adolescents and children and their caregivers in South Asia. Antje’s pro-bono work in South Asia was aimed at contributing positively to this noble endeavour.

Antje is very grateful to all those who helped to make this ambitious project a success, in particular to Martin Henrich – Rainbow Foundation Baddegama; Samitha Baddegama Thero; Lalith Ganheva – Lanka Help e.V. Deutschland; Zahabia Adamaly; Lasanthi Senarath Attanayake & colleagues, Kelaniya University and the International Centre for Ethnic Studies; Rakitha Karunaratne and his team, German Goethe Institute Sri Lanka; Senake Amerasinghe – former Rotary District Governor and his team; Banthe Devananda; Una Macauley, Dilupa Fernando and their team at UNDP Sri Lanka; Philippe Cori and his team at UNICEF Regional Office for South Asia; Sara Bordas Eddy and her team at UNICEF Bangladesh Country Office; and of course, Janis McDavid.

[1] The purpose of the convention is to promote, and protect the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities.

[2] General Comments provide authoritative interpretations of children’s rights under the Convention.

Traditionally, individuals have been the “objects” of international law and not”subjects”. This is not the case anymore. Individuals now have an enhanced status in the international legal sphere, and at the least, are now genuine participants in the international legal order. How is this enhanced status reflected in practice?

In this presentation, having regard to his doctoral topic and practice as an international lawyer, Rishi Gulati will discuss certain regimes of law where individuals have standing in international law.

First, he will briefly discuss his experiences in representing clients at the Human Rights Committee and the Committee Against Torture, focusing on some due process issues. Second, he will canvass issues around individual access to a court vis-à-vis disputes between International Organisations (IOs) and individuals, with particular reference to the problematic regime on IO immunities. Finally, he will make some brief observations as to how the theoretical discourse on the individual’s status in international law is being reflected in practice.

Speaker bio: Rishi Gulati is a Dickson Poon Scholar of Law at King’s College London(2015-18),undertaking a PhD in the area of international dispute resolution under the supervision of Dr Philippa Webb. As part of his PhD, Rishi also focuses on enhancing access to justice for individuals vis-à-vis disputes with International Organisations.Rishi has previously worked as an International Lawyer for the Australian Government. As a Barrister, he has represented clients before several international tribunals and fora, including the UN Human Rights Committee and the Committee Against Torture. He is also an Academic Expert at a leading public international law Barristers’ Chambers, Bretton Woods Law.

The BWL Rule of Law Team notes with ever increasing concern that at its Assembly in late June 2014 in Malabo, Equatorial Guinea, the African Union (“AU”) adopted the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (“the Second Protocol”) and called upon its member states to sign and ratify the treaty “as expeditiously as possible so as to enable [it] to enter into force.” [Click to see a copy of the relevant AU Decision] Readers will recall that the First Protocol for the establishment of the African Court of Justice and Human Rights (“the ACJHR”) was adopted by the AU in Sharm El-Sheikh, Egypt on 1st July 2008.

The ACJHR; the main purpose of which is to function as the principal judicial organ of the AU, is intended to have jurisdiction over both civil and criminal cases, including matters presently within the jurisdiction of the International Criminal Court (“ICC”) in The Hague, such as genocide, war crimes and crimes against humanity. But unlike the ICC, it is intended that the ACJHR will also have jurisdiction over transnational crimes, such as money-laundering, human and drug trafficking, terrorism and piracy. The difficulty is that the ACJHR’s constituent treaty, as adopted and advanced by the AU, contains a clause granting immunity from prosecution to sitting heads of state.

Like many others, members of the BWL Rule of Law Team are troubled by the existence of the immunity, for it undermines fundamentally the Rule of Law principle that ‘no one is above the law’ and that ‘all are accountable to the law,’ including those individuals who represent the State’s guiding mind and will. Lee Marler, the barrister who leads the BWL Rule of Law Team, is quoted as saying that “one cannot help but wonder whether the suggested immunity from ACJHR prosecution for African Heads of State – which is indefensible – is as a result of the ICC’s indictments of Sudan’s Omar al-Bashir and Kenya’s Uhuru Kenyatta.” Neil Macaulay, another senior member of the BWL Team, sees the merits of establishing the ACJHR, despite the overlapping jurisdiction of the ICC, but “is concerned that the existence of the immunity from prosecution will undermine from the very outset the Court’s credibility and may put international funding of the Court at risk.”

Steps to establish the ACJHR will not take place until 15 AU states have ratified the Court’s treaty. Until such time as the Court has the ability to prosecute all those responsible for atrocities and crimes within Africa, it is to be hoped that AU States will respect the Rule of Law and resist the AU’s call to ratify the treaty in its presently flawed state.

Barristers from Bretton Woods Law last week won yet another international employment law case within the European Bank for Reconstruction and Development’s (“EBRD” or “Bank’s”) internal justice system. In fact, this is the third straight win in a row of late at the EBRD for BWL, but, regrettably, we are prevented from telling you about two of the three cases because the Bank intentionally applies a cloak of secrecy to the ministrations and jurisprudence emanating from its Grievance Committee. One of the three cases was, however, a judgement of the EBRD’s Administrative Tribunal (“EBRDAT”) in respect of the jurisdiction of the Grievance Committee to hear a particular matter. This judgement was thankfully published on the Tribunal’s webpage and it makes for interesting reading for a variety of reasons, not least of which is the implicit criticism of the Bank’s behaviour [read].

The EBRD, which is headquartered in London, is an international organisation that enjoys limited immunity from legal suit within the United Kingdom. But the EBRD’s immunity is sufficient to cover employment disputes and, as a result, disgruntled EBRD employees are generally unable to seek recourse or protection from English employment tribunals. EBRD employees have in general no other option than to rely upon the substitute internal system of justice created by and imposed upon them by the Bank for the resolution of their employment related grievances.

The Grievance Committee is the EBRD’s court of first instance and therefore the fact-finding body within its internal justice system, with an appeal lying thereafter to the EBRDAT. The Chair of the Grievance Committee is an external lawyer, who is assisted in his or her deliberations by two staff members sitting in the capacity of Assessors. The EBRD’s internal law only permits the Grievance Committee to make a recommendation on the outcome of an employment dispute to its President, Sir Suma Chakrabarti, and it then falls to Sir Suma to decide whether to accept or reject the Committee’s findings. Sir Suma is the decision maker at first instance and this is so regardless of whether the employee is seeking to contest the lawfulness of his decisions. In contrast, the EBRDAT is permitted by the Bank to pass judgement on disputes and its judgements are both binding and published on line. However, the recommendations of the Grievance Committee are not published nor are Sir Suma’s decisions thereon, which is truly astonishing given the fact that the Bank, as an international organisation, is a product of and is subject to customary international law, including inter alia article 6 of the European Convention on Human Rights (“ECHR”)

Article 6 of the ECHR stipulates that “everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law” in the determination of their “civil rights and obligations.” What is more, article 6 provides that not only should any hearing be in held in public, but that “judgement shall be pronounced publically.” The EBRD falls down on both these points, for its Grievance Procedures (2011), which is the internal law that establishes and guides the Grievance Committee, exclude from the hearing or trial of the facts at first instance everyone other than the parties, including union representatives, and treats the proceedings of the Committee as confidential, including any report of the Grievance Committee to Sir Suma and any subsequent decision taken by him. What makes matters worse is that the EBRD floats the threat of disciplinary action against any employee who openly talks about or otherwise discloses details of his or her case, both within the Bank and outside of it.

What this means in practice is that the EBRD is able to hide from the public at large and, more importantly, its serving employees the outcomes of cases that it has lost at first instance and any criticism levied against it by the members of the Committee, including the external and independent judge. This lack of transparency self-evidently defeats the aims of justice, as it conceals judicial work that would assist immeasurably other disgruntled employees and their lawyers, stifles the making of informed complaints and, significantly, prevents the Bank’s Board of Directors from shining the spotlight of accountability on those who need to be illuminated.

Blanket confidentiality at first instance is an all too common practice within the internal justice systems of international organisations and BWL lawyers take the view that such confidentiality has no place in an internal system that acts as a substitute for national courts and tribunals. It is abused by international organisations, it is abhorrent and it should be stopped. If international organisations fear exposure of their behaviour, then the simple and, in truth, only answer is to take steps to improve. However, until organisations such as the EBRD comply with their obligations under prevalent and applicable human right laws, we are unable to discuss in any detail how our clients, with our assistance, have prevailed and often in circumstances that have attracted judicial criticism of their employers.

International organisations are products of international law, as they are invariably created by means of multilateral treaties. It is therefore not surprising that the International Court of Justice (“ICJ” or “World Court”) has made it quite clear on several occasions that international organisations “are bound by any obligations incumbent upon them under general rules of international law” (Advisory Opinion on the Interpretation of the Agreement of March 25th, 1951 between WHO and Egypt [1980] I.C.J. Reps at 89-90. See also the Reparation for Injuries Case [1949] I.C.J. Reps 174 at 179: an international organisation is “a subject of international law and capable of possessing international rights and duties”).

It is now generally accepted that international organisations, as international persons, are bound by the customary rules of international law, including the customary aspects of international human rights law. By way of example, Sands and Klein, editing Bowett’s Law of International Institutions, take the view at page 456 that:

“notwithstanding the fact that an international organisation is not a party to, say, a human rights treaty …if the rule contained in an agreement is reflected in customary international law then it can, as such, bind an international organisation. It has been suggested, for example, that the World Bank is not subject to general international norms for the protection of fundamental human rights. In our view that conclusion is without merit, on legal or policy grounds.”

The right to a fair and, indeed, a public hearing by an independent and impartial tribunal in the determination of rights and obligations is now undoubtedly a general rule of international law; it is a ‘fundamental human right’ that finds its origins in article 10 of the Universal Declaration of Human Rights (“the Declaration”). Building upon the Declaration, which was proclaimed by the General Assembly of the United Nations on 10th December 1948, the states of Europe sought in 1950 to enforce certain Declaration rights by agreeing the European Convention on Human Rights (“ECHR”). Article 6(1) of the ECHR provides that in the determination of civil rights and obligations “everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

The geographical limitation of the ECHR was to a certain extent addressed and remedied by the United Nations opening for state signature on 19th December 1966 the International Covenant on Civil and Political Rights (“ICCPR”), which came into force on 23rd March 1976. In conformity with article 10 of the Declaration and article 6 of the ECHR, article 14(1) of the ICCPR states that in the “determination … of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.” Similar provisions can be found in other international human rights treaties, such as article 8 of the 1969 American Convention on Human Rights and articles 10 and 20 of the 2012 ASEAN Human Rights Declaration.

Most, if not all international organisations enjoy as a matter of law some form of immunity from legal suit in their respective member states. This means that international civil servants, as the employees of international organisations, are prevented from pursing employment related complaints in national employment courts and tribunals. In order to maintain their immunity from suit, international organisations are thus obliged to provide their employees with a forum in which they can litigate their disputes and, as such, international organisations have over the years developed and implemented various forms of internal justice mechanisms. But merely providing an international civil servant with a mechanism by which his or her case can be heard is insufficient, as international law, as is clearly demonstrated above, requires that the hearing must be public and above all fair, which means that the mechanism must offer all the guarantees inherent in the notion of due process. The consequences for an international organisation of failing to provide for a fair internal system of justice is that it risks losing its immunity and therefore risks being sued successfully in national courts. In Waite and Kennedy [1999] 116 ILR 121, the European Court of Human Rights (“ECtHR”), dealing with a case concerning the European Space Agency, made plain that “a material factor in determining whether granting […] immunity from […] jurisdiction is permissible is whether the applicants had available to them reasonable alternative means to protect effectively their rights under the [ECHR].”

The right to the enjoyment and protection of human rights is not lost merely because an individual decides to work for an international organisation. Human rights ‘black-holes’ do not exist and they most certainly do not exist within organisations created and maintained by states. So, in short, the answer to the question is yes, international civil servants, as the employees of international organisations, have the right to have their employment complaints heard and heard fairly.